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Simmons v. Stephenson8/16/2002
's CPPA claim, the court held that in order for the CPPA to apply in the physician-patient context, the claimant must demonstrate a nexus between the claims and the entrepreneurial aspect of the medical practice. Id. at 19. Thus, the court held that an allegation of negligence and failure to obtain informed consent did not constitute an "unlawful trade practice" as defined by the CPPA. Id.
The federal court's opinion in the Dorn case adopted the approach by the Michigan courts. Dorn, 121 F.Supp. 2d at 19. In Nelson v. Ho, 222 Mich. App. 74, 564 N.W.2d 482 (Mich. Ct. App. 1997), the Michigan Court of Appeals held that:
nly allegations of unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect of a physician's practice may be brought under the MCPA [Michigan Consumer Protection Act]. Allegations that concern misconduct in the actual performance of medical services or the actual practice of medicine would be improper. Id. at 486.
The court further held, "Only when physicians are engaging in the entrepreneurial, commercial, or business aspect of the practice of medicine are they engaged in `trade or commerce' within the purview of the MCPA." Id.
In accordance with the aforementioned authorities, we conclude that the Simmonses stated no claim under the Kentucky Consumer Protection Act. The allegations in the complaint did not relate to the entrepreneurial, commercial, or business aspect of Dr. Stephenson's practice of medicine. In short, we conclude the trial court did not err in awarding Dr. Stephenson summary judgment.
Furthermore, to the extent the Simmonses' complaint states a cause of action for medical malpractice, the trial court correctly granted summary judgment due to the Simmonses' failure to produce expert medical proof to support their claim. See Morris v. Hoffman, Ky. App., 551 S.W.2d 8 (1977).
The judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
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